Commissioners of the N.Y. State Ins. Fund v Empire State Mech. Corp.

Supreme Court, Richmond County

Decided on March 5, 2026

Index No. 150265/2025

Ronald Castorina, Jr., J.

Decision and Order Amended FN1

I. Statement Pursuant to CPLR § 2219 [a]

The following e-filed documents listed on NYSCEF (Motion No. 002) numbered 20-22, 25-26, 32-35 were read on this motion. The Court has considered the following papers on the motion by defendants seeking an order compelling discovery and related relief:

1. Order to Show Cause and supporting affirmation of Anthony Krempa, Esq., dated January 21, 2026, with exhibits annexed thereto;

2. Affirmation in Opposition of William L. Bonifati, Esq., dated March 2, 2026, with exhibits annexed thereto;

3. Affirmation in Reply of Anthony Krempa, Esq., dated March 4, 2026.

4. All prior pleadings and papers referenced in the foregoing submissions.

Upon the foregoing papers, the motion is determined as follows.

I. Procedural History and Findings of Fact

This action arises from a claim prosecuted by the Commissioners of the New York State Insurance Fund ("Plaintiff") as statutory assignee of the personal injury claim of Gabriel Gomes Assis ("sAssignor"). According to the pleadings referenced in the motion papers, Plaintiff commenced this action by filing a summons and complaint on January 24, 2025. (NY St Cts Filing [NYSCEF] Doc No. 1). The complaint alleges that Plaintiff, as the workers' compensation insurance carrier for Assignor's employer, paid workers' compensation benefits to the Assignor following injuries allegedly sustained at a construction site, and that Plaintiff now seeks recovery [*2]from the defendants as alleged third-party tortfeasors. (see id).

The complaint asserts that the Assignor was employed by Progress Construction Corp., which allegedly performed contractor services at the construction site where the incident occurred. (see id). Plaintiff alleges that Assignor sustained injuries as a result of the defendants' negligence, and that Plaintiff paid compensation benefits, including medical expenses and wage benefits, pursuant to the Workers' Compensation Law. (see id). Plaintiff therefore brings the instant action as assignee of Assignor's cause of action pursuant to Workers' Compensation Law § 29 [2].

The procedural record reflects that defendant Empire State Mechanical Corp. served an answer with discovery demands on June 9, 2025. (NY St Cts Filing [NYSCEF] Doc No. 6). Subsequently, on September 5, 2025, defendants Refik Akikouski and Lenora Akikouski (the "Akikovski Defendants") filed their answer with cross-claims and served discovery demands including demands for authorizations. (NY St Cts Filing [NYSCEF] Doc No. 7; 8).

According to the moving papers, the defendants did not receive responses to their discovery demands. Thereafter, on December 9, 2025, co-defendant Empire State Mechanical Corp. filed a Request for Judicial Intervention. (NY St Cts Filing [NYSCEF] Doc No. 9). The Akikovski Defendants thereafter transmitted a good-faith letter dated December 19, 2025 pursuant to 22 NYCRR 202.7 seeking responses to the outstanding discovery demands. The motion papers assert that no response was received. (NY St Cts Filing [NYSCEF] Doc No. 11).

The Court thereafter conducted a conference on January 7, 2026. During that conference, defendants requested production of medical records and HIPAA-compliant authorizations executed by the Assignor, as well as the Assignor's appearance for an examination before trial and an independent medical examination. Plaintiff declined to produce HIPAA authorizations or medical records executed by the Assignor, maintaining that the Assignor was a nonparty over whom Plaintiff had no control and that defendants were required to obtain such discovery by subpoena. The Court declined to resolve the dispute at the conference and directed that the issue be addressed by expedited motion practice.

Defendants thereafter moved by order to show cause seeking, inter alia:

1. An order pursuant to CPLR § 3124 compelling Plaintiff to produce HIPAA authorizations executed by the Assignor and any medical records in Plaintiff's possession;

2. An order compelling the Assignor to appear for an examination before trial; and

3. An order compelling the Assignor to appear for an independent medical examination.

Plaintiff opposes the motion and asserts that it has substantially complied with discovery demands and produced the materials within its possession. Plaintiff contends that the remaining materials sought, namely authorizations and discovery from the Assignor, are outside its control because the Assignor is a nonparty whose cause of action was assigned to Plaintiff by operation of statute. Plaintiff further asserts that a party cannot be sanctioned or compelled to produce materials not within its possession, custody, or control.

III. Conclusions of Law

A. Disclosure Under CPLR § 3101

The CPLR mandates broad and liberal disclosure. CPLR § 3101 [a] provides for "full disclosure of all matter material and necessary in the prosecution or defense of an action." As noted in the moving papers, the Appellate Division has recognized the expansive nature of this provision (see Frawley v City of New York, 221 AD3d 973 [2d Dept 2023]).

The moving defendants contend that Plaintiff, as assignee of the Assignor's cause of action, stands in the shoes of the Assignor and therefore must provide discovery related to the Assignor's alleged injuries. It is well settled that an assignee acquires no greater rights than those possessed by the assignor (see Long Island Radiology v Allstate Ins. Co., 36 AD3d 763 [2d Dept 2007], quoting Arena Constr. Co. v. J. Sackaris & Sons, Inc., 282 AD2d 489 [2d Dept 2001]).

In the instant action, Plaintiff asserts claims sounding in negligence arising from injuries allegedly sustained by the Assignor. To establish negligence, a plaintiff must demonstrate "(1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom" (see Klein v Catholic Health Sys. of Long Island, Inc., 231 AD3d 797 [2d Dept 2024]).

Where a party places his or her physical condition in controversy, disclosure of relevant medical information is ordinarily required, including authorizations for medical records (see DiLorenzo v Toledano, 190 AD3d 941 [2d Dept 2021], quoting Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 NY2d 452, 456-457 [1983]).

Defendants therefore argue that because Plaintiff asserts claims based upon injuries allegedly sustained by the Assignor, Plaintiff must provide HIPAA authorizations and medical records relating to those injuries.

B. Discovery from an Assignor

Plaintiff contends, however, that the Assignor is not within its control. Plaintiff asserts that the cause of action was assigned by operation of Workers' Compensation Law § 29 [2] and that Plaintiff has no agency or employment relationship with the Assignor. According to Plaintiff, disclosure from the Assignor must therefore be obtained by subpoena rather than by discovery demands directed to Plaintiff.

In support of this position, Plaintiff relies upon Commerce & Industry Ins. Co. v. Entertainment Services, Inc., (2009 NY Slip Op 30876(U) [Sup Ct New York County 2009]). In that case, the court observed that although the assignor may be compelled to appear for examination before trial, the assignee cannot be sanctioned for the assignor's failure to comply with discovery absent evidence of collusion or control.

Plaintiff further cites commentary interpreting CPLR § 3101 [a] [2] which indicates that disclosure may be sought from the former owner of a claim but must generally be obtained by subpoena where that individual is not under the control of a party.

Additionally, Plaintiff contends that discovery demands directed to a party are limited to materials "in the possession, custody or control of the party or person served," as reflected in CPLR § 3120 and the authorities cited in the opposition papers.

The opposition further cites appellate authority holding that sanctions are inappropriate where a party attempts to comply with discovery but does not possess the requested materials (see Ayala v Lincoln Med. & Mental Health Ctr., 92 AD3d 542 [1st Dept 2012]; Cap Rents Supply, LLC v Durante, 167 AD3d 700 [2d Dept 2018]).

C. Application to the Present Motion

Upon consideration of the submissions, the Court finds that the requested relief must be analyzed in two distinct respects.

First, to the extent defendants seek discovery materials that are within Plaintiff's possession, custody, or control, including medical records obtained by Plaintiff in connection with the payment of workers' compensation benefits, such materials are plainly discoverable. Where a party possesses relevant records bearing upon the injuries placed in controversy, [*3]disclosure is required under CPLR § 3101 [a] (see DiLorenzo v Toledano, 190 AD3d 941 [2d Dept 2021]).

Thus, any medical records of the Assignor that are actually in Plaintiff's possession must be produced.

Second, however, the Court must consider defendants' request that Plaintiff be compelled to procure authorizations and produce discovery directly from the Assignor.

The papers establish that the Assignor is not a party to this action and that Plaintiff obtained the cause of action by operation of Workers' Compensation Law § 29 [2]. The record further reflects Plaintiff's representation that the Assignor has failed to respond to communications requesting cooperation.

Under the authorities cited by the parties, disclosure from a former owner of a claim may be obtained, but where such individual is not under the control of the party, the proper mechanism is a subpoena rather than a discovery demand directed to the party (see Commerce & Industry Ins. Co. v. Entertainment Servs., Inc., 2009 NY Slip Op 30876(U) [Sup Ct New York County 2009]).

The Court therefore finds that while defendants are entitled to seek discovery from the Assignor, Plaintiff cannot be compelled to produce authorizations executed by the Assignor or otherwise be sanctioned for failing to produce discovery that is not within its possession or control.

Similarly, the record does not establish that Plaintiff has the authority to compel the Assignor to appear for deposition or an independent medical examination. The authorities cited in the papers recognize the Court's power to compel the assignor to appear for examination, but do not impose upon the assignee the obligation to secure such attendance absent evidence of control (see Commerce & Industry Ins. Co. v. Entertainment Servs., Inc., supra).

Accordingly, the proper course is to permit defendants to pursue discovery from the Assignor directly by subpoena.

IV. Conclusion and Decretal Paragraphs

For the reasons stated above, the Court determines that defendants are entitled to disclosure of medical records of the Assignor that are within Plaintiff's possession. However, Plaintiff cannot be compelled to produce authorizations executed by the Assignor or otherwise provide discovery that is not within its possession, custody, or control.

Accordingly, it is hereby

ORDERED that the motion is granted solely to the extent that Plaintiff shall produce any medical records of Gabriel Gomes Assis that are within Plaintiff's possession, custody, or control; and it is further

ORDERED that the motion is otherwise denied; and it is further

ORDERED that defendants may seek discovery from Gabriel Gomes Assis directly by subpoena as permitted by the CPLR; and it is further

ORDERED that the parties shall proceed with discovery in accordance with the CPLR and any applicable scheduling orders of this Court.

This constitutes the Decision and Order of the Court.

Dated: March 5, 2026

Staten Island, New York

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT